Another term of the US Supreme Court has come and gone and, as I have for years, I will say something about it in this blog in a set of four posts. Welcome to the first.
There have been important decisions this term I will not discuss. For example, I won't get to a significant decision on jury trials, Ramos v. Louisiana, decided in April. Though the court has long considered that the right to a jury trial was incorporated in the 14th amendment and thus applied to the states, it had not considered whether the requirement that the jury be unanimous in any conviction vote was part of the principle at issue. This April, by a 6-3 vote (written, interestingly, by Gorsuch) it held answered that question in the affirmative. I could find little to say about this point, though, not easily found elsewhere, so I will leave it be here.
Also: there was an important decision late this term about the SEC's use of disgorgement of profits as both remedy and punishment for securities fraud. However consequential, the decision is not intellectually provoking. The court simply split the difference between the parties before it: disgorgement is a permissible remedy, but there are limits to the circumstances in which it can be applied. When a decision of that sort makes me yawn, I shudder to think what it might do to you, dear reader, some of whom have never immersed yourself in the particulars of securities and corporate law (poor lambs), and so I pass quickly on.
Such arbitrary exclusions notwithstanding, we have a heck of a lot of ground to cover. Some of my choices will appear -- and will be -- idiosyncratic. Deal with it, this is my blog!
How do we start?
I'll start in a way that will probably surprise many of you, spending all of this post, once these introductory remarks are through, on the issue of a New Jersey scandal that has faded from public attention, even in that state, with the fading of the name "Chris Christie." It will prove to be worth its disinterment.
In the next post, I will speak to some of the statutory interpretive questions with which the Court tangled this session, such as the civil rights act and its applicability to firings that punish sexual orientation or trans-gender identification.
In the third, we will discuss the structure of governance in the US, the upping and downing of the roles of various constitutional players against one another. This will lead us to consideration of the fact that states want to control their own presidential electors, and that Congress wants to be able to see a President's tax returns.
Finally, we will discuss some of the politically polarizing blockbusters: this year's abortion case, for example, some Church-State matters, and the protected status of the head of a particular agency designed to enforce responsible behavior in the marketing of securities and financial services.
Today, then, we begin with the Court's unanimous decision, written by Justice Elena Kagan, in Kelly v. United States. https://www.supremecourt.gov/opinions/19pdf/18-1059_e2p3.pdf
The George Washington Bridge
Beginning on Monday, September 9, 2013, two of three lanes providing access to the GW Bridge from Fort Lee were unexpectedly closed. This bridge connects upper Manhattan with Fort Lee, New Jersey. They stay closed through Thursday, causing congestion and gridlock. It was clear from the beginning that this was a politically sensitive matter. A Port Authority Police Dept officer (a 12 yer veteran), Steve Pisciotta, asked over his radio what might be done about the severe congestion the closure was causing. PAPD deputy inspector Darcy Licorish radioed back with a classic explanation, "Shut up."
The Governor of New Jersey, Chris Christie, was running for e-election at the time. The mayor of Fort Lee had declined efforts by the Christie campaign to secure his endorsement, and the idea quickly emerged that the lane closures were retribution arranged by Christie or some zealot beneath him in a chain of command.
The Port Authority is a joint venture of New York and New Jersey. The Governors split the task of appointing senior PA staff. Christie had appointed Bill Baroni, as Deputy Executive Director, and Baroni in turn had appointed as director of Interstate Capital Projects, David Wildstein. Wildstein was directly responsible for the lane closures, supposedly as part of a "traffic study."
As to the zealot beneath Christie? Yes, there was one. She was Bridget Anne Kelly, the Governor's chief of staff. Indeed, there is a smoking gun email. In August 2013, Kelly emailed Wildstein to say, "Time for some traffic problems in Fort Lee." Wildstein replied, "Got it."
Christie escaped accountability for his (near certain) role in this, and I suppose there is some logical possibility that Kelly was zealot enough to take upon herself the responsibility of writing such a momentous email. At any rate, karma was not entirely toothless. The scandal did harm to Christie's attempt to mount a credible presidential election campaign.
The issue that reached the Supreme Court was the reach of the federal wire fraud statute, under which both Kelly and Baroni were convicted.
The Wire Fraud Statute
The pertinent statute says, among much else, that it is a crime to use the wires to obtain by fraud the property of a federally funded program or entity. The defendants didn't argue that they hadn't used the "wires," that they hadn't engaged in fraud (this element was satisfied by the make-believe traffic study) or that the Port Authority doesn't obtain federal funds. Instead, they challenged the element that they had obtained property from the port authority.
The prosecution argued that the scheme had commandeered the bridge itself, which is paradigmatic PA property. It also argued in the alternative that the costs to the government of the back-up toll collectors who became necessary as a result of the congestion could be seen as the property taken by this fraud.
The Supreme Court, via Kagan's opinion, rejected both contentions. Kagan said that federal fraud law leaves a lot of fraud and public corruption to the states themselves to address, it only catches certain specific activities to be divined by reading the text narrowly.
As to commandeering the bridge itself, Kagan says that Kelly and Baroni might be said to have done this had they converted the bridge, or the pertinent lanes, to a non-public use. (Maybe if they had held a party for their personal friends on the closed lanes?). But they didn't make any non-public use of the bridge, so that's out.
As to the re-allocation of employees that the congestion necessitated, Kagan was also unimpressed, saying, "a government's right to its employees' time and labor cannot undergird a property fraud prosecution." The re-assignment of govt employees, or their overtime hours, was at most an incidental effect of the political retaliatory scheme, not the point of it.
Commentary
The chief reason I have made of this case the backbone of the first section of this review of the court's session is ... its bearing (or its alleged bearing) on the recently high-profile issue of the proper grounds for the impeachment of a president.
Jonathan Turley has claimed that the Bridgegate decision is a victory for Donald Trump, a vindication and expansion on points made during the defense of the impeachment charges early this year.
Alas for Turley, this argument requires thinking by (strained) analogy. Christie and his flunkies are implicitly compared by such a claim to Donald Trump and HIS flunkies. The unfortunately gridlocked drivers of Fort Lee are the analog of the Ukraine, deprived of relief until a favor could be received. The desired endorsement of the re-election of Christie plays the part, in the analogy, of the desired investigation into Hunter Biden to help secure the election of Donald Trump.
Turley's point is that both Trump and the Bridgegate defendants were acting within the scope of their official powers, and so did not deserve removal from office in the former case and imprisonment in the latter.
This is a rather myopic argument: a "bridge too far." First, it should not be as difficult to remove someone from a position of supreme executive power as it is to put someone in prison. Sending Trump back to Mar a Lago or Trump Tower full time is not akin to sending Ms Kelly to a small cell with a toilet in the corner.
Second, even ignoring that: Kagan's argument was pitched on federalism grounds. Yes, it does sound ironic to say that only the New Jersey government should police the corruption of the New Jersey government. But the state government has its own checks and balances among its branches -- and it has a body politic that votes regularly -- so it is not intuitively obvious that the federal government should always be the go-to answer to the question "who shall guard the guardians." The Trump situation has no comparable federalism component. Congress in general, and its impeachment proceedings in particular, are precisely designed to check presidential overreach. That is exactly what they are there for. To guard the guardian.
I'd make a third point as a pragmatist. Consider the consequences. Kelly and Baroni are in no position to mess up Fort Lee's traffic again. They are now in a position to try to put their lives together as private citizens, without the "ex-con" stigma. Good luck to them. Trump, though, is very much in a position to continue abusing executive power, and has continued to do so. The failure of the effort to impeach him, a failure due in part to Turley's advocacy, has if anything emboldened Trump and made lasting damage to the republic more likely.
You might best serve the republic best by your own retirement, Mr Turley.
In the meantime, dear reader, you and I will turn to other statutory interpretive issues.
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